Ley de copyright.
RECENT REGULATION COPYRIGHT LAW — DIGITAL MILLENNIUM COPYRIGHT ACT -— LIBRARIAN OF CONGRESS EXEJVIPTS UNIVERSITY PROFESSORS AND FILM STUDENTS FROM DMCA ANTICIRCUMVENTION PROVISIONS. — Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 75 Fed. Reg. 43)825 (July 27, 2010) (to be codified at 37 C.F.R. pt. 201). Since the emergence of the digital era, the use of technology in the classroom has become increasingly pervasive,' and the virtues of such uses have been quite widely felt.^ Section 1201 of the Digital Millennium Copyright Act^ (DMCA) generally prohibits the circumvention of technological access controls, which have the effect of limiting the degree o which educators and students may make fair uses of copyrighted works. That same section includes a provision granting the Librarian of Congress the authority to exempt users who "are, or are likely to be in the succeeding three-year period, adversely affected . . . in their ability to make noninfringing uses . . . of a particular class of copyrighted works."'* Recently, the Librarian of Congress accepted the recommendation of the Register of Copyrights to issue a rule that exempts university professors and film students from the DMCA's anticircumvention provisions when they override access controls^ on DVDs with the reasonable belief that such actions are ecessary to further pedagogical goals.^ The new rule succeeds in expanding the limited educational privileges announced in a prior rulemaking ' See generally U.S. DEP'T OF E D U C , TOWARD A NEW GOLDEN AGE IN AMERICAN EDUCATION (2004), available at http://www2.ed.gov/about/offices/list/os/technology/plan/2oo4/ plan.pdf (discussing the implementation of a national education technology plan that acknowledges the significant role technology plays in American education). Following the technological "arms race" of the 1980s and the rapid development of the internet in the 1990s, media companies petitioned the government for augmented legal protection against enterprising individuals who circumvented access controls on DVDs and engaged in the widespread copying and dissemination of these companies' prized works.' In response. Congress amended the Copyright Act of 1976^ by enacting the DMCA in 1998. The DMCA carries a series of anticircumvention measures, the most relevant of which is § i20i(a)(i). This provision explicitly prohibits the circumvention of any "technological measure that effectively controls access" to a protected work.^ In order to preserve the public's ability to engage in fair uses of copyrighted materials,'° Congress initially identified seven classes of uses that would be free from DMCA liability." However, acknowledging the limitations of its forecasting ability. Congress incorporated within § 1201 a "fail-safe mechanism."'^ This mechanism prescribes triennial rulemaking proceedings whereby the Librarian of Congress — upon the recommendations of the Register of Copyrights and the National Telecommunications and Information administration (NTIA) of the Department of Commerce'^ — balances the benefits and Because the Lihrarian plays an ancil HARVARD LAW REVIEW 124:1604 harms of granting exemptions to other proposed classes, i'* Subsection i20i(a)(i)(C) of the DMCA directs the Librarian to examine four primary factors in the course of a rulemaking: (i) the availability for use of copyrighted works; (ii) the availability for use of works for nonprofit archival, preservation, and educational purposes; (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; [and (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works. The § 1201 rulemaking in 2006 was the first to establish an educational exception to the DMCA's anticircumvention provisions.'^ A group of film professors initially proposed an exemption for professors of film and media studies.'' Proponents of the proposed class argued that possible alternatives to circumvention, such as using VHS cassettes, recording with a digital video recorder, or playing individual DVDs in succession to showcase clips, were inadequate to satisfy the particular pedagogical purposes of film professors. ^^ They further contended that the proposed exemption would have little to no effect on the market for copyrighted audiovisual works and would therefore be properly tailored to minimize adverse consequences to copyright holders.*' Finding these reasons persuasive, the Register concluded that all of the § i20i(a)(i)© factors weighed in favor of exempting "audiovisual works included in the educational library of a college or university's film or media studies department. . . used in the classroom by media studies or film professors."^°The 010 rulemaking was designed to respond to eight new proposals that the Copyright Office received in 2009.^^ Some proponents lary role in the rulemaking process, much of the discussion concerning the reasoning behind the 2010 rulemaking draws on the recommendations of the Register and NTIA alone. '•'' '' RECENT REGULATION 1607 argued that the exempted class should include audiovisual works in any college or university library because the 2006 rule "unduly restrict[ ed] the range of titles available for pedagogical use" and presupposed that most schools had "dedicated and separate film and/or media studies libraries."^^ Others sought to eliminate the exclusive privilege given to film professors, as instructors' needs for applications of technology in foreign language, criminal justice, law, and medical courses reflected "the pervasiveness and importance of audiovisual material in contemporary education."" Still others believed that college students and K-12 teachers and students should be able to circumvent access control technologies.^'* Beneficiaries of the 2006 rule sought its renewal, including its exemption for audiovisual content other than motion pictures on DVDs.^^ NTIA contended that the source of copyrighted works circumvented for educational use should be limited to college and university libraries, and it determined that evidence supported an exemption for college professors and students more generally.^The Register agreed with NTIA that all university professors should be exempt from DMCA liability, but she further extended the exemption only to film students rather than to all university students." '' '' The Register stated that access controls adversely affect a variety of educational purposes and that using other forms of media or acquiring licenses from relevant rights holders are impractical alternatives to circumvention.^^ Because the exempted parties would be allowed to copy only short portions of copyrighted works for educational uses, the Register reasoned that the exemption would not harm the market for or value of copyrighted works.^^ In addition, given that "no evidence was introduced to suggest that harm to copyright owners' interests would result from . . . noninfringing uses of lawfully acquired DVDs," the Register declared that there should be no limitations on the source of the copyrighted works.^° However, she determined that non-film students and K-12 teachers and students should not be covered under the rule because proponents of that position failed to show that access OF COPYRIGHT PROTECTION SYSTEMS FOR ACCESS CONTROL TECHNOLOGIES '' To high-quality images was absolutely necessary for these individuals. She further noted that, while many proponents defined their proposed classes in terms of audiovisual works, "no evidence was introduced in relation to audiovisual works outside of the subset of motion pictures"; thus, the exemption should be restricted to motion pictures alone. Finally, the Register insisted that all university professors and film students "must believe and have reasonable grounds for believing that circumvention is necessary in order to . . . provide some degree of assurance that the designation of this class may not be used as a pretext for excessive circumvention. "^^ Ultimately, the Librarian followed the Register's recommendation in its totality. The 2010 rule succeeded in broadening the scope of the 2006 rule. Yet the Register neither accounted for nor properly weighed all of the evidence presented, which led her to inappropriately constrain the degree of coverage for excepted uses. Moreover, the exception's limitation to motion pictures on DVDs excluded a large swath of other media that could be employed in the classroom. As a result, the Register squandered an excellent opportunity to bring copyright law in this area into alignment with existing fair use doctrine and, at least for the next three years, eliminated the possibility that adversely affected users seeking to take advantage of emerging technologies in educational contexts will be accorded appropriate accommodation. The § 1201 rulemaking process was expressly implemented to "ensure that the public would have continued ability to engage in noninfringing uses of copyrighted works. "^^ This language reflects Congress's commitment to the widely accepted doctrine of fair use^^ and affirms its constitutional duty "to promote the Progress of Science and useful Arts."^' Indeed, the social benefits of fair use are numerous: it strikes a balance between proprietary interests and fundamental free speech rights, facilitates productive uses of works when the value of those uses far outweighs the transaction costs that would result from the license and sale of intellectual property, and contributes to the development of an informed citizenry that is better positioned. to proponents did include some fictionalized scenarios to support their case,"" the Register failed to mention that most proponents offered a mixture of hypothetical and factual illustrations."^ These evidentiary missteps undermined the logic of the Register's reasoning and negatively infiuenced her recommendation to the Librarian as a result. ''Not only was the Register's recommendation plagued by evidentiary omissions, but it also relied on false assumptions. For example, her assertion that non-film students and K-12 teachers and students may use alternatives to circumvention, such as video capture software," is of no help to individuals lacking the means to use such alternatives. One proponent of expanding the exemptions noted that, due to operating system restrictions, "screen capture technologies do not provide a long-term solution" to the problems associated with the DMCA's anticircumvention provisions."' Furthermore, access to free video sharing websites is often restricted in primary and secondary schools."^ It is possible that non-film students and K-12 teachers and students may still be able to avoid DMCA liability in certain cases by claiming coverage under the documentary filmmaking or noncommercial video prongs of the 2010 rule."^ Nevertheless, distinguishing between film students and non-film students and between university teachers and other teachers ignores the highly integrated and crossdisciplinary nature of technology usage in the classroom today and serves to make the pure educational exemption underinclusive. Consequently, there seems to be little reason why the Register drew the lines where she did. The imposition of a reasonableness standard as a way to distinguish lawful from unlawful circumvention makes these distinctions all the more untenable. Even if one were to assume that the standard is Hobbs, Professor of Broadcasting, Telecommunications & Mass Media, Temple University). ''